On October 8, 2019, the Supreme Court of the Unites States (SCOTUS) heard oral arguments on two Civil Rights Act cases related to discrimination on the basis of sex.[1] One of these cases, Bostock v. Clayton Cty., Ga., asks the Court to decide whether workplace discrimination against an employee on the basis of their sexual orientation constitutes unlawful sex discrimination within the meaning of Title VII of the Civil Rights Act of 1964.[2] This post seeks to explore the comparator problem that the Court highlighted during oral arguments, and suggest two potential ways the Petitioner, Gerald Lynn Bostock, could have better overcome this issue. The Facts of the Case Petitioner Gerald Lynn Bostock advocated for the interests of at-risk children in the juvenile court system of Respondent Clayton County, Georgia, for over ten years beginning in 2003.[3] Mr. Bostock received favorable performance reviews as the County’s Child Welfare Services Coordinator, and oversaw the Court Appointed Special Advocates program (“CASA”).[4] Since Mr. Bostock began participating in a gay recreational softball league in January 2013, individuals with significant influence in the County’s decisionmaking openly criticized his sexual orientation and participation in the league.[5] In April 2013, the County initiated an unwarranted “audit” of CASA’s funds, and fired Mr. Bostock on June 3, 2013, stating “conduct unbecoming of a county employee” as the reason for his termination.[6] The Arguments Petitioner argues that discrimination on the basis of sexual orientation is discrimination “because of sex” for three main reasons.[7] First, because “sexual orientation is a sex-based classification within the meaning of Title VII,” disparate treatment of an employee based on sexual orientation “would not occur ‘but for’ his sex.”[8] Second, discrimination based on sexual orientation is “discrimination on the basis of a failure to conform to a sex-based stereotype.”[9] Third, sexual orientation discrimination is associational discrimination based on an employee’s association with another person of the same sex.[10] Respondent contends that sexual orientation discrimination does not fall under the protection of Title VII based on a narrow interpretation of the term “sex.”[11] Respondent argues that the language of Title VII does not prohibit discrimination based on sexual orientation for two reasons. First, the “original public meaning” of the term “sex” at the time of Title VII’s passage was understood as male or female and, second, sexual orientation refers to an individual’s sexual preference.[12] Respondent asserts that this narrow definition of “sex” is appropriate because it ensures the separation of powers between the legislative and judicial branches.[13] Petitioner replies that Respondent failed to address the fact that a person’s sexual orientation cannot be defined without reference to their own sex.[14] Further, Petitioner argues that Respondent improperly applied the Court’s decisions regarding the “but for” test for sexual discrimination, the sex stereotype theory, and the associational theory of discrimination.[15] Additionally, Petitioner refers to the Court’s history of recognizing forms of sex discrimination not contemplated by Congress in 1964.[16] The Comparator Problem During oral arguments before SCOTUS, several justices and Respondent brought up the “comparator problem.”[17] The comparator problem suggests that comparing a gay man to a heterosexual woman is inappropriate because the comparator does not isolate whether the employer discriminated based on a person’s sex or sexual orientation.[18] For example, Petitioner asserts that if an employer fires a man who is attracted to men but not a woman who is attracted to men, the employer discriminated on the basis of sex in the firing.[19] However, the comparator problem would suggest that the appropriate analogy indicating discrimination on the basis of sex is where an employer fires a man who is attracted to men but not a woman who is attracted to women.[20] Overcoming the Comparator Problem While the Justices appear to not fully accept that the comparator problem precludes a decision in favor of Petitioner, Petitioner could have made a stronger case by providing a different comparator or avoiding the comparator problem entirely.[21] Petitioner should have presented the comparator of an employer who fires a man who is attracted to men, but not a cross-dressing man – whom the employer believes to be a woman – who is attracted to men. The employer clearly bases this discrimination on sex; the employer relies on sex-stereotypes to assign a sex to their employee, regardless of whether the assignation is correct or not. Should the Court uphold Respondent’s position to isolate sex and sexual orientation in the comparator to determine the reason for terminating employment, discovering the truth would necessitate checking the genitalia of the fired employee, a ridiculous and offensive notion. Petitioner could have also avoided the comparator problem entirely by explaining the scientifically problematic reliance on the binary definition of “sex” as male or female. In fact, interACT: Advocates for Intersex Youth filed an amicus brief in support of Petitioner advancing this argument that “one’s sex cannot be reduced to a straightforward function of body parts,” as Respondent would have it.[22] interACT urges that

[t]he undeniable existence of intersex people highlights the inadequacy of the Employers’ simplistic, binary definition of  “sex.” Nature, as it turns out, is not as clean-cut as the Employers would have the Court believe. And for that reason, attempting to reduce sex to a function of genitalia, gonads, or chromosomes – while excluding one’s deeply felt identity and lived experience from the calculus – is a fool’s errand.[23]

In a time when society more openly recognizes the range and fluidity of sex that has always existed, SCOTUS has the opportunity and authority to ensure every individual’s protection from discrimination on the basis of sex. Whether the majority-conservative Court will seize this moment to safeguard individuals from discrimination will reveal the Court’s level of dedication to the fundamental principles that are the foundation of this nation.

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  [1] Transcript of Oral Argument at 1, Bostock v. Clayton Ct., Ga., No. 17-1618 (U.S. 2019). [2] 42 U.S.C. § 2000e-2; Brief for Petitioner at 3, Bostock v. Clayton Cty., Ga., No. 17-1618 (U.S. filed June 26, 2019). [3] Brief for Petitioner at 4, Bostock v. Clayton Cty., Ga., No. 17-1618 (U.S. filed June 26, 2019). [4] Id. [5] Id. at 5. [6] Id. at 5-6. [7] Id. at 10. [8] Id. [9] Id. [10] Id. at 18. [11] Brief for Respondent at 6, Bostock v. Clayton Cty., Ga., No. 17-1618 (U.S. filed Aug. 16, 2019). [12] Id. [13] Id. [14] Reply Brief for Petitioner at 2-3, Bostock v. Clayton Cty., Ga., No. 17-1618 (U.S. filed Sept. 10, 2019). [15] Id. at 5. [16] Id. at 12-14. [17] Transcript of Oral Argument at 28-29, 43-44, Bostock v. Clayton Ct., Ga., No. 17-1618 (U.S. 2019). [18] Id. at 44:5-10. [19] Id. at 29:2-8. [20] Id. at 29:9-20. [21] Id. at 44:17-47:10 (noting that sex need not be the sole motivating factor for terminating an employee, and sex is inherently tied to sexual orientation). [22] Brief for interACT: Advocates for Intersex Youth, et al. as Amici Curiae Supporting Petitioner, Bostock v. Clayton Cty., Ga. (U.S. filed July 3, 2019) (No. 17-1618), 2019 WL 446221 at 1-7. [23] Id. at 6-7.